Report: Anaheim officer justified in killing man who had BB gun

ANAHEIM – An Anaheim officer was justified in shooting and killing a man holding a BB rifle while the officer was responding to reports of an armed man at an apartment complex, an investigation by the Orange County District Attorney's Office has determined.

District Attorney's Office investigators do not believe that Officer Nick Bennallack was criminally culpable for the shooting death of Bernie Villegas, 36, at an Anaheim apartment complex on West Ball Road on the night of Jan. 7, 2012, a letter released Friday outlining the results of their investigation said.

A friend of Villegas told investigators that the two of them were hanging out in the visitor parking area of the apartment complex, where they were talking and shooting an empty Pine Sol bottle with Villegas' BB rifle. The friend's girlfriend reportedly told investigators that she assumed the two of them were visiting the apartment complex in order for her boyfriend to buy drugs from Villegas and that she was asleep in a nearby parked car while they were shooting the BB gun.

About 10:50 p.m., someone called the police to report a man in the visitor parking area with a shotgun, which the caller believed he was "trying to hide from public view." The caller knew the man was a tenant at the complex, that he had been contacted and previously arrested by police and suspected that he sold drugs, the report said.

Four officers responded to the complex, where they found Villegas holding what turned out to be the BB gun. The report said the officers identified themselves as police and ordered Villegas at gunpoint to put up his hands and drop the gun.

Villegas began to raise the gun, investigators wrote, at which point Bennallack fired five rounds from his handgun, striking Villegas multiple times.

Villegas was pronounced dead at the scene.

A Daisy Red Ryder BB gun was found near Villegas' body. The D.A.'s report said "the BB gun had the general appearance of a real firearm and did not, for instance, have a bright orange safety tip."

Bennallack told investigators that when he fired, he was "both in fear for his safety and his life and for the lives of his fellow officers and the public," reasoning that a single shot from a shotgun was capable of hitting multiple targets. Bennallack also told investigators that Villegas had been described as a known drug dealer, and that, in his experience, "drug dealers often carry weapons and have the potential to use them against law enforcement officers."

"Although the gun turned out to be a BB rifle and not an actual shotgun, we believe that a jury hearing this case would be likely to find that Officer Bennallack reasonably feared for his safety and the safety of others," investigators concluded. "The justifications of self-defense and the defense of others apply whether the danger is real or merely apparent, provided that the fear aroused is reasonable."

Villegas, who immigrated to the United States from the Philippines in 2002, was survived by his 14-year-old daughter and 12-year-old son.

Community frustrations after six officer-involved shootings in 2012 culminated with protests and a near-riot after the shooting death of Manuel Diaz on July 21. In the wake of the protests, Anaheim Mayor Tom Tait and other community leaders are pushing for the establishment of a citizens committee to review police actions and conduct violations.